PETITIONER:
MOTI RAM & ORS.
Vs.
RESPONDENT:
STATE OF M.P.
DATE OF JUDGMENT24/08/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
CITATION:
1978 AIR 1594 1979 SCR (1) 335
1978 SCC (4) 47
CITATOR INFO :
R 1978 SC1601 (7)
R 1979 SC1360 (8)
R 1979 SC1719 (2)
D 1989 SC1841 (5)
ACT:
Bail jurisprudence-Enlargement on bail with or without
sureties-Scope of Ss. 440(1), 441, 445 read with s. 389(1)
of the Code of Criminal Procedure, 1973 -Criteria to guide
in quantifying the amount of bail and acceptance of surety
whose estate is situate in a different district or State,
explained.
HEADNOTE:
Pursuant to the directions of the Supreme Court for
releasing the petitioner-appellant "on hail to the
satisfaction of the Chief Judicial Magistrate," the
Magistrate ordered that a surety in a sum of Rs. 10,000/- be
produced. When the petitioner produced one. the magistrate
made an odd order refusing to accept the suretyship of the
petitioner's brother because he and his asset were in
another district. Frustrated by magisterial intransigence
the prisoner moved, this Court again to modify the original
order "to the extent that the petitioner be released on
furnishing surety to the tune of Rs. 2,000/- or on executing
a personal bond or pass any other order or direction as this
Hon'ble Court may deem fit and proper". Directing the
Magistrate to release the petitioner on his own bond in a
sum of Rs. 1,000/- the Court,
^
HELD: (1) Social Justice is the signature tune of our
Constitution and the littleman in peril of losing his
liberty is the consumer of social justice. And the grant of
bail can be stultified or made impossibly inconvenient and
expensive if the Court is powerless to dispense with surety
or to receive an Indian bailor across the district borders
as good or the sum is so excessive that to procure a wealthy
surety may be both exasperating and expensive. The problem
is plainly one of human rights, especially freedom vis-a-
vis, the lowly and necessitates the Supreme Court to
interdict judicial arbitrariness deprivatory of liberty and
ensure "fair procedure" which has a creative connotation
after Maneka Gandhi [1978] 2 SCR 621. [338 C-F. 339 A-B]
(2) Bail covers release on one's own bond with or
without sureties, as the legal literature, Indian and Anglo-
Amemrican on bail jurisprudence lends countenance and the
need for liberal interpretation in areas of social justice,
individual freedom and indigent's rights justifies. When
sureties should be demanded and what sum should be insisted
on are dependent on variables. [344 G, 347 C]
(3) A semantic smog overlays the provisions of bail in
the Code and prisoners' rights, when cast in ambiguous
language become precarious. [345 C]
(a).'Bail' in s. 436 of the Criminal Procedure Code
suggests 'with or without sureties. And, 'bail bond` in s.
436(2) covers own bond. [345 E]
(b) 'Bail' in s. 437 (2) suggests release, the accent
being on undertaking to appear. when directed, not on the
production of sureties. But s. 137(2) distinguishes between
bail and bond, without sureties. [345 F-G]
336
(c) Section 445 suggests, especially read with the
marginal note that deposit of money will do duty for bond
'with or without sureties'. [345 G]
(d) Superficially viewed, s. 441 ( 1 ) uses the words
'bail' and 'own bond' as antithetical, if the reading is
liberal. Incisively understood, Section 441(1) provides for
both the bond of the accused and the undertaking of the
surety being conditioned in the manner mentioned in the sub-
section. To read "ail" as including only cases of release
with sureties will stultify the sub-section, for then, an
accused released on his own bond without bail, i.e. surety,
cannot be conditioned to attend at the appointed place.
Section 441(2) uses the word 'bail' to include 'own bond'
loosely as meaning one or the other or both. Moreover, an
accused, in judicial custody, actual or potential, may be
released by the Court to further the ends of justice and
nothing in s 441(1) compels a contrary meaning. S. 441(2)
and (3) use the word 'bail' generically because the
expression is intended to cover bond with or without
sureties; [345 H, 346 A-C]
(e) When the Court of appeal as per the import of s.
`389(1) may release a convict on his own bond without
sureties, surely, it cannot be that an undertrial is worse
off than a convict or that the power of the Court to release
increases when the guilt is established. It is not the
Court's status but the applicant guilt status that is
germane. That a guilty man may claim judicial liberation pro
tempore without sureties while an undertrial cannot, is a
reductio ad absurdum. [346 D-E]
(5) The Supreme Court's powers to enlarge a prisoner,
as the wide words of order 21 Rule 27 (Supreme Court Rules
1966) show, contain no limitation based on sureties, which
means that a murderer, concurrently found to be so, may.
theoretically be released on his own bond without sureties
while a suspect, presumed to be innocent cannot be. Such a
strange anomaly could not be, even though it is true that
the Supreme Court exercises wider powers with greater
circumspection. [346 F-G]
(6) If sureties are obligatory even for juveniles,
females and sickly accused while they can be dispensed with.
after being found guilty, if during the trial when the
presence to District lawyers is more necessary, an accused
must buy release only with sureties while at the appellate
level, suretyship is expendable, there is unreasonable
restriction on personal liberty with discrimination writ on
the provisions. The hornet's nest of Part III need not be
provoked if the Court reads 'bail' to mean that it popularly
does. and lexically and in American Jurisprudence is stated
to mean, viz. a generic expression used to describe under
release from custodia juris. [347 A-B]
(7) Art. 14 protects all Indians qua Indians, within
the territory of India. Art. 350 sanctions representation to
any authority, including a Court, for redress of grievances
in any language used in the Union of India. Equality before
the law implies that even a vakalat or affirmation made in
and State language according to the law in that State must
be accepted everywhere in the territory of India, same where
a valid legislation to the contrary exists. Otherwise, an
Adivasi will be unfree in Free India, and likewise many
other minorities. The process of making Indians aliens in
their own homeland should be inhibited. Swaraj is made out
of united stuff. The best guarantee of presence in Court is
the reach of law, not the money tag. [347 G-H, 348 A-B, D]
The Court left open to the Parliament to consider-
whether in our socialist republic with social justice
as its hallmark, monetary supersti-
337
tion, not other relevant consideration like family
ties, roots in the community, membership of stable
organisations should prevail or bail bonds to ensure
that the 'bailee' does not flee justice.]
JUDGMENT:

I. N. Shroff and S. K. Gambhir for the Respondent.
V. M. Tarkunde, K. T. Harinder Nath, R. K. Jain and
H.K. Puri for the Intervener
The order of the Court was delivered by
KRISHNA IYER, J.-'The law. in its majestic equality,
forbids the rich as well as the poor to sleep under bridges,
to beg in the streets, and to steal bread", lampooned
Anatole France. The reality of this caricature of equal
justice under the law, whereby the poor are priced out of
their liberty in the justice market, is the grievance of the
petitioner. His criminal appeal pends in this Court and he
has obtained an order for bail in his favour "to the
satisfaction of the Chief Judicial Magistrate". The
direction of this Court did not spell out the details of the
bail, and so, the magistrate ordered that a surety hl a sum
of Rs. 10,000/- be produced which, in actual impact, was a
double denial of the bail benefit. For one thing the
miserable mason. the petitioner before us, could not afford
to procure that huge sum or manage a surety of sufficient
prosperity. Affluents do not befriend indigents. For
another, the magistrate made an odd order refusing to accept
the suretyship of the petitioner's brother because he and
his assets were in another district.

If mason and millionaire were treated alike, egregious
inegality is an inevitability. Likewise, geographic allergy
at the judicial level makes mockery of equal protection of
the laws within the territory of India. India is one and not
a conglomeration of districts, untouchably apart.

When this Court's order for release was thus frustrated
by magisterial intransigence the prisoner moved this Court
again to modify the original order "to the extent that
petitioner be released
338
on furnishing surety to the tune of Rs. 2,000/- or on
executing a personal bond or pass any other order or
direction as this Hon'ble Court may deem fit and proper".
From this factual matrix three legal issues arise ( 1 ) Can
the Court, under the Code of Criminal Procedure, enlarge, on
his own bond without sureties, a person undergoing
incarceration for a non-bailable offence either as
undertrial or as convict who has appealed or sought special
leave ? (2) If the Court decides to grant bail with
sureties, what criteria should guide it in quantifying the
amount of bail, and (3) Is it within the power of The court
to reject a surety because he or his estate is situate in a
different district or State ?

This formulation turns the focus on an aspect of
liberty bearing on bail jurisprudence. The victims, when
suretyship is insisted on or heavy sums are demanded by way
of bail or local bailors alone are presona grata, may well
be the weaker segments of society like the proletariat, the
linguistic and other minorities and distant denizens from
the far corners or our country with its vast diversity. In
fact the grant of bail can be stultified or made impossibly
inconvenient and expensive if the court is powerless to
dispense with surety or to receive an Indian bailor across
the district borders as good or the sum is so excessive that
to procure a wealthy surety may be both exasperating and
expensive. The problem is plainly one of the human rights,
especially freedom vis-a-vis the lowly. This poignant import
of the problem persuaded the Chamber Judge to invite the
Supreme Court Bar Association and the Citizens for Democracy
to assist the Court in decoding the Code and its provisions
regarding bail. The Kerala State Bar Federation was
permitted to intervene and counsel for the parties also made
submissions. We record our appreciation of the amici curiae
for their services and proceed to discuss the triple issues
formulated above.

There is already a direction for grant of bail by this
Court in favour of the petitioner and so the merits of that
matter do not have to be examined now. It is a sombre
reflection that many little Indians are forced into long
cellular servitude for little offences because trials never
conclude and bailors are beyond their meagre means. The new
awareness about human rights imparts to what might appear to
be a small concern relating to small men a deeper meaning.
That is why we have decided to examine the question from a
wider perspective bearing in mind prisoner's rights in an
* Justice V. R. Krishna Iyer.

339

international setting and informing ourselves of the
historical origins and contemporary trends in this branch of
law. Social Justice is the signature tune of our
Constitution and the little man in peril of losing his
liberty is the consumer of Social Justice.

There is no definition of bail in the Code although
offences are classified as bailable and non-bailable. The
actual Sections which deal with bail, as we will presently
show, are of blurred semantics. We have to interdict
judicial arbitrariness deprivatory of liberty and ensure
'fair procedure' which has a creative connotation after
Maneka Gandhi. (1)
Before we turn to the provisions of the Code and dwell
on the text of the Sections we may as well remember what
Justice Frankfurter said:

"there is no surer way to misread a document
than to read it literally."2
Speaking generally, we agree with the annotation of the
expression 'bail' given in the American Jurisprudence (2nd
Edn. Vol. 8, Art. 2, p. 783):

"The term 'bail bond' and 'recognizance' are
used inter changeably in many bail statutes, and quite
generally without distinction by the courts, and are
given a practically identical effect."

According to the American Jurisprudence, Art. 6, p. 785,
there is power in the court to release the defendant without
bail or on his own recognizance. Likewise, the definition of
bail as given in Webster's Third New International
Dictionary:

"The process by which a person is released from
custody."

The concept of bail has a long history briefly set out in
the publication on 'Programme in Criminal Justice Reform':

"The concept of bail has a long history and
deep roots in English and American law. In medieval
England, the custom grew out of the need to free
untried prisoners from disease-ridden jails while they
were waiting for the delayed trials conducted by
travelling justices. Prisoners were bailed, or
'delivered, to reputable third parties of

(l) [1978] 2 S.C.R. 621 [1978] 1 S C.C. 248.

(2) Massachusetts B. and Insurance Co. v. U S, 352 U.S. 128

138.
340
their own choosing who accepted responsibility for
assuring their appearance at trial. If the accused did
not appeal, his bailor would stand trial in his place.
Eventually it became the practice for property
owners who accepted responsibility for accused persons
to forfeit money when their charges failed to appear
for trial. From this grew the modern practice of
posting a money bond through a commercial bondsman who
receives a cash premium for his service, and usually
demands some col lateral as well. In the event of non-
appearance the bond is forfeited, after a grace period
of a number of days during which the bondsman may
produce the accused h court."(1)
It sounds like a culture of bonded labour, and yet are
we to cling to it ! of course, in the United States, since
then, the bondsman emerged as a commercial adjunct to the
processes of criminal justice, which, in turn, bred abuses
and led to reform movements like the Manhattan Bail Project.
This research project spurred the National Bail Conference,
held in 1964, which in its crucial chain reaction provided
the major impetus to a reform of bail law across the United
States. The seminal statutory outcome of this trend was the
enactment of the Bail Reform Act of 1966 signed into law by
President Lyndon B. Johnson. It is noteworthy that Chief
Justice Earl Warren, Attorney General Robert Kennedy and
other legal luminaries shared the view that bail reform was
necessary. Indeed, this legislative scenario has a lesson
for India where a much later Criminal Procedure Code 1973
has largely left untouched ancient provisions on this
subject, incongruous with the Preamble to the Constitution.

An aside. Hopefully, one wishes that socio-legal
research projects in India were started to examine our
current bail system. Are researchers and jurists speechless
on such issues because pundits regard these small men's
causes not worthwhile ? Is the art of academic monitoring of
legislative performance irrelevant for India ?

The American Act of 1966 has stipulated, inter alia,
that release should be granted in non-capital cases where
there is reasonable assurance that the individual will
reappear when required; that the Courts should make use of a
variety of release options depending on the circumstances;
that information should be developed about the individual on
which intelligent selection, of alternatives should be
based.

(1) Vera Institute of Justice Ten-year Error 1961-71 r. 20.

341

The Manhattan Bail Project, conducted by the Vera
Foundation and the Institute of Judicial Administration at
New York University School of Law, found that about sixty-
five percent of all felony defendants interviewed could be
recommended for release without bail. Of 2.195 defendants
released in this way less than one percent failed to appear
when required. In short, risk of financial loss is all
insubstantial deterrent to flight for a large number of
defendants whose ties with the community are sufficient to
bring them to court.

The consequences of pre-trial detention are grave.
Defendants presumed innocent are subjected to the
psychological and physical deprivations of jail life,
usually under more onerous conditions than are imposed on
convicted defendants. The jailed defendant loses his job is
he has one and is prevented from contributing to the
preparation of his defence. Equally important, the burden of
his detention frequently falls heavily on the innocent
members of his family.

It is interesting that American criminological thinking
and research had legislative response and the Bail Reforms
Act, 1966 came into being. The then President, Lyndon B.
Johnson made certain observations at the signing ceremony:

"Today, we join to recognize a major
development in our system of criminal justice: the
reform of the bail system.

This system has endued-archaic, unjust and virtually
unexamined-since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an
accused person will return for trial if he is released
after arrest.

How is that purpose met under the present system ? The
defendant With means can afford to pay bail. He can afford
to buy his freedom. But the poorer defendant cannot pay the
price He languishes in jail weeks, months and perhaps even
years before trial.

He does not stay in jail because he is guilty.
He does not stay in jail because any sentence has been
passed.

He does not stay in jail because he is any More likely
to flee before trial.

He stays in jail for one reason only-because he is
poor...."

(emphasis added)
342
Coming to studies made in India by knowledgeable
Committees we find the same connotation of bail as including
release on one's own bond being treated as implicit in the
provisions of the Code of Criminal Procedure. The Gujarat
Committee from which we quote extensively, dealt with this
matter in depth:

"The bail system, as we see it administered in
the criminal courts to-day, is extremely unsatisfactory
and needs drastic change. In the first place it is
virtually in possible to translate risk of non-
appearance by the accused into precise monetary terms
and even its basic premise that risk of financial loss
is necessary to prevent the accused from fleeing is of
doubtful validity. There are several considerations
which deter an accused from running away from justice
and risk of financial loss is only one of them and that
too not a major one. The experience of enlightened Bail
Projects in the United States such as Manhattan Bail
Project and D. C. Bail Project shows that even without
monetary bail it has been possible to secure the
presence of the accused at the trial in quite a large
number of cases. Moreover, the bail system causes
discrimination against the poor since the poor would
not be able to furnish bail on account of their poverty
while the wealthier persons otherwise similarly situate
would be able to secure their freedom because they can
afford to furnish bail. This discrimination arises even
if the amount of the bail fixed by the Magistrate is
not high, for a large majority of those who are brought
before the Courts in criminal cases are so poor that
they would and it difficult to furnish bail even in a
small amount."

(emphasis added)
The vice of the system is brought out in the Report:
"The evil of the bail system is that either the
poor accused has to fall back on touts and professional
sureties for providing bail or suffer pre-trial
detention. Both these consequences are fraught with
great hardship to the poor. In one case the poor
accused is fleeced of his moneys by touts and
professional sureties and sometimes has even to incur
debts to make payment to them for securing his release;

in the other he is deprived of his liberty without
trial and conviction and this leads to grave
consequences, namely: (1) though presumed innocent he
is subjected to
343
the psychological and physical deprivations of jail
life; (2) he loses his job, if he has one, and is
deprived of an opportunity to work to support himself
and his family with the result that burden of his
detention falls heavily on the innocent members of the
family, (3) he is prevented from contribution to the
preparation of his defence; and (4) the public
exchequer has to bear the cost of maintaining him in
the jail.(1)
The Encyclopaedia Britannica brings out the same point
even in more affluent societies:

"bail, procedure by which a judge or magistrate
sets at liberty one who has been arrested or
imprisoned, upon receipt of security to ensure the
released prisoner's later appearance in court for
further proceedings .. Failure to consider financial
ability has generated much controversy in recent years,
for bail requirements may discriminate against poor
people and certain minority groups who are thus
deprived of an equal opportunity to secure their free
dom pending trial. Some courts now give special
consideration to indigent accused persons who, because
of their community standing and past history, are
considered likely to appear in court."(')
"We should suggest that the Magistrate must
always bear in mind that monetary bail is not a
necessary element of the Criminal process and even if
risk of monetary loss is a deterrent against fleeing
from justice, it is not the only deterrent and there
are other factors which are sufficient deterrents
against flight. The Magistrate must abandon the
antiquated concept under which pre-trial release could
be ordered only against monetary bail. That concept is
out-dated and experience has shown that it has done
more harm than good. The new insight into the subject
of pre-trial release which has now been developed in
socially advanced countries and particularly the United
State should now inform the decisions of the
Magistrates in regard to pre-trial release. Every other
feasible method of
(1) Report of the Legal Aid Committee appointee. by the
Govt. Of Gujarat 1971, and headed by the then Chief
Justice of the State, Mr. Justice P.N. Bhagwati p 185.

(2) Encyclopaedia. Britannica, Vol. I, P. 736 (15th Edn)
Micro edn.

344

pre-trial release should be exhausted before resorting
lo monetary bail. The practice which is now being
followed in the United States is that the accused
should ordinarily be released on order to appear or on
his own recognizance unless it is shown that there is
substantial risk it is appearance or there are
circumstances justifying imposition of conditions on
release .. If a Magistrate is Satisfied after making an
enquiry into the condition and background of the
accused that the accused has his roots in the
community and is nor likely to abscond, he can safely
release the accused on order to appear or on his own
recognizance ......"(1)
(emphasis added)
A latter Committee with Judges, lawyers, members of
Parliament and other legal experts. came to the same
conclusion and proceeded on the assumption that release on
bail included release on the accused's own bond:

" .... We think that a liberal policy of
conditional re lease without monetary sureties or
financial security and release on one's own
recognizance with punishment provided for violation
will go a long way to reform the bail system and help
the weaker and poorer sections of the community to get
equal justice under law. Conditional release may take
the form of entrusting the accused to the care his
relatives or releasing him on supervision. The court or
the authority granting bail may have to use the
discretion judiciously. When the accused is too poor to
find sureties, there will be no point in insisting on
his furnishing bail with sureties, as it will only
compel him to be in custody with the consequent
handicaps in making his defence."(2)
Thus, the legal literature, Indian and Anglo-American,
on bail jurisprudence lends countenance to the contention
that bait. loosely used, is comprehensive enough to cover
release on ones own bond with or without sureties.

We have explained later that the power of the Supreme
Court to enlarge a person during the pendency of a Special
Leave Petition or of an appeal is very wide, as order 21
Rule 27 of the Supreme Court Rules discloses. In that sense,
a consideration of the question
(1) Report of the Legal Aid Committee appointed by the
Govt. Of Gujarat 1971. P. 185.

(2) Report of the Expert Committee on Legal Aid-Processual
Justice to the People, May 1973.

345

as to whether the High Court or the subordinate courts have
powers to enlarge a person on his own bond without sureties
may not strictly arise. Even so, the guidelines which
prevail with the Supreme court when granting suspension of
sentence must, in a broad sense, have relevance to what the
Code indicates except where special circumstances call for a
different course. Moreover, the advocates who participated-
many of them did-covered the wider area of release under the
Code, whether with or without sureties, and that is why we
consider the relevant provisions of the Code in some detail.

Let us now examine whether there is anything in the
Provisions of the Code which make this meaning clearly
untenable.

A semantic smog overlays the provisions of bail in the
Code and prisoners' rights, when cast in ambiguous language
become precarious. Where doubts arise the Gandhian talisman
becomes a tool of interpretation: "Whenever you are in
doubt.... apply the following test. Recall the face of the
poorest and the weakest man whom you may have seen, and ask
yourself, if the step you contemplate is going to be of any
use of him." Law, at the service of life, must respond
interpretatively to raw realities and make for liberties.

Primarily Chapter XXXIII is the nidus of the law of
bail. Sec. 436 of the Code speaks of bail but the proviso
makes a contradistinction between 'bail' and 'own bond
without sureties'. Even here there is an ambiguity, because
even the proviso comes in only if, as indicated in the
substantive part, the accused in a bailable offence is
prepared to give bail'. Here, 'bail' suggests 'with or
without sureties'. And, 'bail bond' in Sec. 436(2) covers
own bond. Sec. 437(2) blandly speaks of bail but speaks of
release on bail of persons below 16 years o age, sick or
infirm people and women. It cannot be that a small boy or
sinking invalid or pardanashin should be refused release and
suffer stress and distress in prison unless sureties are
haled into a far-off court with obligation for frequent
appearance ! 'Bail' there suggests release, the accent being
on undertaking to appear when directed, not on the
production of sure- ties. But Sec. 437(2) distinguishes
between bail and bond without sureties.

Sec. 445 suggests, especially read with the marginal
note that deposit of money will do duty for bond 'with or
without sureties. Sec. 441(1) of the Code may appear to be a
stumbling block in the way of the liberal interpretation of
bail as covering own bond with and without sureties.
Superficially viewed, it uses the words 'bail' and 'own
bond' as antithetical, if the reading is literal. Incisively
346
understood, Sec. 441(1) provides for both the bond of the
accused and the undertaking of the surety being conditioned
in the manner mentioned in the sub-section. To read 'bail'
as including only cases of release with sureties will
stultify the sub-section; for then, an accused released on
his own bond without bail, i.e., surety, cannot be
conditioned to attend at the appointed place. Sec. 441(2)
uses the word 'bail' to include 'own bond' loosely as
meaning one or the other or both. Moreover, an accused in
judicial custody, actual or potential, may be released by
the court to further the ends of justice and nothing in Sec.
44 1( 1 ) compels a contrary meaning.

Sec. 441(2) and (3) use the word 'bail' generically
because the expression is intended to cover bond with or
without sureties.

The slippery aspect is dispelled when we understand the
import of Sec. 389(1) which reads:

389 (1): Pending any appeal by a convicted
person the Appellate Court may, for reasons to be
recorded by it in writing, order that the execution of
the sentence or order appealed against be suspended
and, also, if he is in confinement, that he be released
on bail, or on his own bond.

The court of appeal may release a convict on his own bond
without sureties. Surely. it cannot be that an under-trial
is worse of than a convict or that the power of the court to
release increases when the guilt is established. It is not
the court's status but the applicant's guilt status that is
germane. That a guilty man may claim judicial liberation pro
tempore without sureties while an undertrial cannot is a
reduetio ad absurdam.

Likewise, the Supreme Court's powers to enalage a
prisoner, as the wide words of order 21 Rule 27 (Supreme
Court Rules) show, contain no limitation based on sureties.
Counsel for the State agree that this is so, which means
that a murderer, concurrently found to be so may
theoretically be released on his own bond without sure- .
ties while a suspect, presumed to be innocent, cannot be.
Such a strange anomaly could not be, even though it is true
that the Supreme Court exercises wider powers with grater
circumspection.

The truth, perhaps, is that indecisive and imprecise
language is unwittingly used, not knowing the draftsman's
golden rule:

"In drafting it is not enough to gain a degree
of precision which a person reading in good faith can
understand, but it is necessary to attain if possible
to a degree of precision which a person reading in bad
faith cannot misunderstand." (Lux Genthum Lex-Then and
Now 1799-1974, p. 7)
347
If sureties are obligatory even for juveniles, females
and sickly accused while they can be dispensed with, after
being found guilty if during trial when the presence to
instruct lawyers is more necessary, an accused must buy
release only with sureties while at the appellate level,
suretyship is expendable, there is unreasonable restriction
on personal liberty with discrimination writ on The,
provisions. The hornet's nest of Part 111 need not be
provoked it read 'bail' to mean that it popularly docs, and
lexically and in American Jurisprudence is stated to Mean,
viz., a generic expression used to describe judicial release
from Custodia. Bearing in mind the need for liberal
interpretation in areas of social justice, individual
freedom and indigent's rights, we hold that bail covers
both-release on one's own bond, with or without sureties.

When sureties should be demanded and what sum should be
insisted on are dependent on variables.

Even so, poor men-Indians in monetary terms indigents
young persons infirm individual and women are weak
categories and courts should be liberal in releasing them on
their own recognisances put whatever reasonable condition
you may.

It Shocks one conscience to ask a mason like the
petitioner to Furnish sureties for Rs. 100,000/- The
magistrate must be given the benefit of doubt for not fully
appreciating that our Constitution. enacted by 'We the
People of India'' is meant for the butcher , the baker and
the candle - stick maker - shall we add , the bonded labour
and pavement dweller.

To add insult to injury, the magistrate has demanded
sureties from his own district. (We assume the allegation in
the petition). What is a Malayalee, Kannadiga, Tamilian or
Andhra to do if arrested for alleged misappropriation or
them or criminal trespass in Bastar , Port Blair ,Port
Blair . Pahalgaam of Chandni Chowk? He cannot have sureties
owning properties in these distant places. He may not know
any one there and might have come in a batch or to seek a
job or in a morcha . Judicial disruption of Indian unity is
surest achieved buy such provincial allergies. What law
prescribes sureties from outside or non- regional
linguistic, some times legalistic. applications? What law
prescribes the geographical discrimination implicit in
asking for sureties from the court district? This tendency
takes many forms, sometimes, geographic , sometimes
linguistic, some times legalistic. Art 14 protects all
Indians qua Indians, within the territory of India. Art 350
sanctions representation to any authority. including a
court, for redress of grievances in any language used in the
Union of India . Equality before the law implies theat even
a vakalat
6-526 SCI/78
348
or affirmation made ill any State language according to the
law in that State must be accepted everywhere in the
territory of India save where a valid legislation to the
contrary exists. Otherwise, an adivasi will be unfree in
Free India, and likewise many other minorities. This
divagation has become necessary to still the judicial
beginnings, and to inhibit the process of making Indians
aliens in their own homeland. Swaraj is made of united
stuff.

We mandate the magistrate to release the petitioner on
his own bond in a sum of Rs. 1,000/-.

An After word
We leave it to Parliament to consider whether in our
socialist republic, with social justice as its hallmark,
monetary superstition, not other relevant considerations
like family ties, roots in the community, membership of
stable organizations, should prevail for bail bonds to
ensure that the 'bailee' does not flee justice. The best
guarantee of presence in court is the reach of the law, not
the money tag. A parting thought. If the indigents are not
to be betrayed by the law including bail law re-writing of
many processual laws is in urgent desideratum; and the
judiciary will do well to remember that the geo-legal
frontiers of the Central Codes cannot be disfigured by
cartographic dissection in the name of language of province.